Journalist thinks Arizona’s FOIA law is too broad

I can’t think of a time since I started this blog two years ago that a journalist has argued that the sunshine laws in his state are too broad. Now, Robert Robb, who writes for the Arizona Republic, has broken that streak.

If you don’t like what Arpaio is doing, you could say so and go on to argue that when it comes to sunshine laws, you have to take the good with the bad (I take no position on whether Arpaio’s use falls into the bad category.)

But Robb goes further and says the state’s law is, generally speaking, too broad. He raises two distinct objections:

Official action by government should be public and transparent. But I think the body politic suffers – in terms of competence, efficiency and effectiveness – by making our government employees work in a fish bowl.

and:

But these broad, sweeping public-records requests are clearly fishing expeditions, intended to harass and intimidate. And as such, they constitute a threat to the rule of law.

People get accused of making overly broad requests pretty often but this is the first time I’ve encountered the claim that a person who asks for a lot of public records is a “threat to the rule of law.”

What could Mr. Robb mean by that?

The rule of law is generally taken to mean “the rule of law” as opposed to “the rule of men”. In this sense, the rule of law is believed to be a guard against the abuses that result when powerful people and officials are allowed to exercise discretionary power in an arbitrary fashion.

Since sunshine laws are designed to in some small measure equalize the power imbalance between ordinary citizens and powerful elected officials, I take it that Mr. Robb believes that the Arizona law has gone too far in righting that imbalance and has instead given too much power to ordinary citizens–a power they can use to frighten, intimate and bully the public officials that one might otherwise think hold most of the cards…and certainly all of the documents.

In my mind’s eye, I see an ordinary citizen in Arizona sitting at her desk, typing up an Arizona open records request for lots of documents. Let’s say she needs lots of documents because she is trying to understand a complex, multi-year policy in her city that has led to massive cost overruns as reported in the local newspaper. She prints out the request and puts a first-class stamp on it.

The public official who gets it feels harrassed and intimidated because he thinks this woman has it in for his department and is motivated by a desire to expose what she believes is departmental wrongdoing. He also knows that the woman doesn’t really know for sure what the documents say. If she already knew what the documents said, she wouldn’t have to file a documents request for them, right? So as far as the public official is concerned, this woman is on a fishing expedition and he, poor fellow, lives in a fishbowl.

And not only that, but because he feels threatened, intimidated and like he lives in a fishbowl, he is also convinced that the rule of law is being threatened–that this woman trying to figure out how the city project came to have such cost over-runs has become so powerful in his mind that it is she, not government officials who don’t want to hand over public documents, who is guilty of exercising her authority and power in a way that endangers the rule of law by imposing her powerful discretionary authority to request those documents on, in his view, a situation that is better left alone.

This not limitation on development of public policy – there is a long tradition of having verbal meetings which create no written record – that is why a deliberative or draft exemption is also ridiculous and has been excised in some states like California